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FILED: NEW YORK COUNTY CLERK 03/21/2014 INDEX NO. 652637/2013
NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 03/21/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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BRANDSWAY HOSPITALITY, LLC a/k/a
BRANDSWAY HOSPITALITY, INDIEFORK LLC Index No. 652637/2013
and MATTHEW LEVINE,
Plaintiffs,
-against-
DELSHAH CAPITAL, LLC, DELSHAH MANAGEMENT,
LLC, MICHAEL K. SHAH, VICTOR (Hon. Shlomo S. Hagler)
JUNG, V GLOBAL HOLDINGS INC., 133 ESSEX
RESTAURANT, LLC a/k/a SONS OF ESSEX, BLACK
LABEL RESIDENTIAL LLC, 19 STANTON
RESTAURANT, LLC a/k/a COCKTAIL BODEGA a/k/a
COCKTAIL BODEGA UNDERGROUND, 61 GANS
RESTAURANT LLC, GRIFFON GANSEVOORT
HOLDINGS, LLC, GRIFFON GANSEVOORT
HOLDINGS, LLC, GRIFFON MANAGEMENT, LLC,
GRIFFON 55 GANS LLC, GRIFFON 55 GANS, LLC,
GRIFFON GANS MANAGER, LLC, GRIFFON 19
STANTON LLC, 19 STANTON STREET, LLC, 19
STANTON STREET, LLC, GRIFFON 1356 LLC,
GRIFFON Q, LLC, GRIFFON GANS, LLC, GRIFFON
GANS MANAGER, LLC, GRIFFON HOLDINGS, LLC,
GRIFFON INVESTMENT, LLC, GRIFFON
INVESTMENT GROUP, LLC, GRIFFON
INVESTMENT HOLDINGS, LLC, 1356 RESTAURANT
LLC a/k/a PETALUMA RESTAURANT, 170 MERCER
RESTAURANT LLC, MOON 170 MERCER, INC., 58-60
NINTH REALTY LLC, GANSEVOORT 69 LLC,
DELSHAH GANSEVOORT 69, LLC, 69
GANSEVOORT RESTAURANT, INC., DELSHAH 60
NINTH, LLC, DELSHAH 60 NINTH MANAGER, LLC,
INDIEFORK HOSPITALITY LLC, JAMES CHOUNG,
JCNY, LLC, PAYCHEX, INC., JPMORGAN CHASE &
CO. and JOHN DOE #1 through #10,
Defendants.
JOHN DOE #1 through #10 are fictitious and unknown to
the plaintiffs, the person or parties intended being the
persons or parties, if any, having or claiming an ownership
of the defendant companies or the real property in which they
are situated but whose identity is not yet known.
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MEMORANDUM OF LAW OF PLAINTIFFS
IN OPPOSITION TO MOTION TO AMEND AND/OR
STRIKE PORTIONS OF AMENDED COMPLAINT
DANZIG FISHMAN & DECEA
One North Broadway, 12th Floor
White Plains, New York 10601
(914) 285-1400
2
PRELIMINARY STATEMENT
Plaintiffs Brandsway Hospitality, LLC a/k/a Brandsway Hospitality, IndieFORK, LLC
and Matthew Levine (together “Plaintiffs”), submit this memorandum of law in opposition to the
motion of defendant Victor Jung (referred to herein as the “Defendant”) which asks the court for
an order requiring Plaintiffs to amend their complaint or alternatively to strike portions thereof.
On January 16, 2014, Plaintiffs filed an amended verified complaint (“Amended
Complaint”), as of right, under the Civil Practice Law and Rules (“CPLR”) Section 3025(a). In
the interest of judicial economy, Plaintiffs filed the Amended Complaint to address some of the
alleged pleading deficiencies previously raised by defendants in prior motion practice. Now
Defendant raises new alleged deficiencies in what appears to be an effort to stall the litigation of
the substantive issues in this action. For the reasons established below, the motion of Defendant
should in all respects be denied.
Plaintiffs have sufficiently pled causes of action based on the breach of contract, fraud
and other tortuous conduct of Defendant. In fact, the Amended Complaint establishes that
defendants not only committed tortious acts against the Plaintiffs, which resulted in Plaintiffs
suffering grave financial harm, but have also precluded Plaintiffs from receiving any future
financial gains. A careful review of the Amended Complaint reveals that Plaintiffs pled all
necessary factual allegations to give defendants notice of the material elements intended to be
proved. Moreover, all statements pled are sufficient to sustain the causes of action stated in the
Amended Complaint. The length of the Amended Complaint is not a basis for its dismissal and
in any event establishes and details the series of occurrences and transactions occurring between
2011 and 2013 that lead to the numerous causes of action and the filing of this matter. It appears
3
that Defendant objects to the content of the Amended Complaint by virtue of the fact that it
details Defendant’s wrongdoing but seeks to dismiss it under the guise of its length. Defendant
should have thought about his tortious conduct before committing it, if he had an aversion to
seeing it detailed in print.
Defendant complains about the length and detail of the Amended Complaint but the fact
of the matter is that it merely alleges the facts of defendant’s own conduct. Defendant Michael
Shah’s varied defalcation schemes, which Defendant Jung conspired to commit, were perpetrated
by and through his co-defendants, via the illegal operations of numerous restaurants and catering
ventures through which he operated his fraud. The various conspiracies perpetrated by
defendants Shah and Jung were voluminous and it is ironic but not compelling that the primary
basis for dismissal is volume; the verified statements contained in the Amended Complaint are
more than adequate to notify under CPLR §§ 3013, 3014, and 3024(b).
Significantly, Defendant does not even attempt to argue that the Amended Complaint
fails to state a cause of action upon which relief may be granted because in fact the causes of
action are more than sufficient. Rather, Defendant relies on the length and specificity of the
Amended Complaint, seeks to strike certain paragraphs of the Amended Complaint because they
contain evidentiary material, and/or contain allegations which Defendant describes as scandalous
and prejudicial. Defendant’s arguments defy logic.
STATEMENT OF FACTS
The facts to be considered on the motion are set forth in the Amended Complaint which
must be deemed to be true and given all favorable inferences.
Briefly stated, Plaintiff, Brandsway Hospitality, LLC run by Plaintiff Matt Levine
(“Levine”), is a full service food and beverage hospitality and operations firm. Levine is a
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proven restaurant operator who entered into a written contract with Defendant, 133 Essex
Restaurant, LLC to run the day to day operations of Sons of Essex. Pursuant to the terms of this
contract, Levine through his corporation Brandsway Hospitality, LLC was to be the managing
partner of Sons of Essex with a 35% ownership interest in the restaurant, which was to vest after
he fulfilled certain performance metrics, in particular after he met Defendant’s revenue goal of
$2,763,490.00. Levine also marketed, developed and operated other restaurant ventures with
Defendant.
Plaintiffs branded and operated the Sons of Essex receiving a Grade A from the
Department of Health, the highest grade possible and receiving many accolades from its
customers. Because of Levine’s reputation, Sons of Essex booked many publicity and revenue
generating events with celebrities garnering a lot of attention for the restaurant.
While Levine was building and branding Sons of Essex, Defendant was misappropriating
and commingling funds, depleting the food, staff and liquor and committing many other
countless tortious acts against Plaintiffs, including forging Levine’s signature and using Levine’s
social security number to obtain credit cards and financing without the Plaintiffs’ consent.
Levine fulfilled his performance metrics. Defendant’s financial projections for 2011 were
$2,763,490.00. Levine greatly exceeded their goals, bringing in $3,471,873 and was on pace to
generate 3x their own projections. Levine was wrongfully terminated ostensibly because of the
failure to achieve certain performance metrics. However, Defendant is not able to produce any
numbers to demonstrate this purported failure. Levine far surpassed the Defendant’s financial
projections and exceeded their goals, a fact that Defendant pointed out repeatedly in over two
years of correspondence.
5
Defendant commingled funds to finance other projects including restaurants and catering
venues in an effort to divert monies and defraud the United States Internal Revenue Service and
the New York State Department of Taxation and Finance. Defendant repeatedly used employees
of Sons of Essex to work at the other restaurants and catering venues, his own personal
residences, and to do his personal tasks. Profits of Sons of Essex were diverted to make illegal
political contributions to the mayoral candidacy and for the New York City Public Advocate.
Additionally taxable profits were regularly being diverted from Sons of Essex to those projects
which were losing money. Defendant went so far as to purchase liquor illegally in New Jersey to
be used for sale at the other restaurants and catering venues. Liquor was ordered through the
Sons of Essex and later transported to the other restaurants and catering venues. Defendant took
home liquor for personal use and used business money to pay his personal expenses and
otherwise commingled the proceeds of the various restaurants and catering venues.
After Levine was wrongfully terminated, he was excluded from Sons of Essex and told
he had no ownership interest in it or any of the other restaurants and catering venues. Defendant
used Plaintiffs outstanding reputation in the restaurant and beverage industry to achieve financial
and to the Plaintiffs’ detriment. Levine’s termination was not due to his failure to perform, but
was a move to push Plaintiffs out so Defendant could gain complete control over the restaurants
and catering venues that Plaintiffs built.
ARGUMENT
LEGAL STANDARD
On a motion to dismiss, the court’s sole consideration “…is whether the pleading states a
cause of action, and if from its four corners factual allegations are discerned, which taken
together manifest any cause of action cognizable at law a motion for dismissal will fail.”
6
Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 372 N.E. 2d 17 (1977). The present motion is
the reverse of what is usually sought by a CPLR §3211(a) pre-answer motion to dismiss; that is,
such motions generally rely upon the lack of specificity or detail which does not meet the notice
requirements of the law. Here, Defendant argues that the Amended Complaint is too detailed;
this argument is anomalous.
Under the requirements set forth in CPLR §3013, 3014 and 3024 a complaint “(i) shall
contain statements that are sufficiently particular, (ii) shall consist of plain and concise
statements, (iii) shall separately state and number causes of action and indicate the allegations
which relate to each cause of action and give adequate notice of the material elements of each
cause of action, and (iv) shall omit prejudicial and unnecessary allegations.” CPLR § 3013, 3014
and 3024. See also, Foley v. D'Agostino, 21 A.D.2d 60, 64-66, 248 N.Y.S.2d 121 (1st Dept.
1964).
The test for whether a complaint is sufficiently particular is whether the pleading gives
notice of the transactions relied on and the material elements of a cause of action. See CPLR §
3013; Duross v. Evans II, 22 A.D.2d 573 (1st Dept. 1965); and Melito v. Interboro-Mut. Indem.
Ins. Co., 73 A.D.2d 819 (4th Dept. 1979). The requirement that a pleading consist of plain and
concise statements that are separately stated and numbered under CPLR § 3014 was designed to
eliminate loosely drawn verbose and poorly organized pleadings and determine whether or not
the pleading as a whole fails to state a cause of action. Foley v. D'Agostino, supra at 64. Courts
will only strike those pleadings which are “unnecessarily prolix, redundant and repetitious and
where, instead of stating plainly and concisely the material facts, the pleading contains
evidentiary matter and is cumbered by a mass of immaterialities.” Aster v. Arthur Murray, Inc.,
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220 N.Y.S.2d 34 (Kings Co. Sup. Ct. 1961); See also, Foley, supra; and Shass v. Abgold Realty
Corp., 277 A.D. 346 (2d Dept. 1950).
Finally, only those pleadings which contain unnecessary, irrelevant and prejudicial
material will constitute a violation of CPLR § 3024. Schachter v. Massachusetts Protective
Ass’n, 30 A.D.2d 540 (2d Dept. 1968).
The test to be applied…is whether or not the matters pleaded are
too conclusory or of too detailed evidence, is whether or not they
will be relevant at the trial in the resolution of the substantive
issues, and whether or not they be material to move the
court’s…discretion to grant the ordinary and extraordinary relief
requested-all in all, that is, if relevant and material, whether or not
substantive prejudice would be the likely result if the allegations
attached are not stricken
Merrick v. New York Subways Adv. Co., 14 Misc. 2d 456, 178 N.Y.S.2d 814 (N.Y.
Co. Sup. Ct. 1958). “In reviewing a motion pursuant to CPLR 3024(b) the inquiry is whether the
purportedly scandalous or prejudicial allegations are relevant to a cause of action.” Foley, supra
at 64-66; Soumayah v. Minnelli, 41 A.D.3d 390, 392 (1st Dept. 2007); New York City Health &
Hosps. Corp. v. St. Barnabas Hosp., 10 A.D.3d 489 (1st Dept. 2004); Rice v. St. Luke’s
Roosevelt Hospital Center, 293 A.D.2d 258 (1st Dept. 2002). If the allegations are pertinent to
the subject matter of the litigation, they cannot be scandalous. Niles v. Yoakum, 179 A.D. 75 (1st
Dept. 1917). See also, Shtafman v. Rokeach & Sons, 16 Misc.2d 888, N.Y.S.2d 531 (N.Y. Co.
Sup. Ct. 1958); and Bell v. Clarke, 45 Misc. 275, 92 N.Y.S. 411 (N.Y. Co. Sup. Ct. 1904).
In accordance with the requirements of CPLR § 3013, 3014 and 3024, Plaintiffs have
pled each statement with sufficient particularity, labeling each section of the Amended
Complaint and listing in chronological order the series of occurrences that lead to the causes of
action contained within the Amended Complaint. Moreover, the Amended Complaint is void of
any unnecessary, scandalous or prejudicial material and the allegations contained in the pleading
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are material to each of the causes of action. Moreover, Defendant has failed to show how he
would be aggrieved by the inclusion of the paragraphs he is seeking to strike. Thus, there is no
basis to dismiss the Amended Complaint. J.C. Mfg., Inc. v. NPI Elec., Inc., 178 Ad2d 505, 506
(2d Dept. 1991).
POINT I
DEFENDANT’S MOTION SHOULD BE DENIED BECAUSE THE PLAINTIFFS HAVE
COMPLIED WITH THE REQUIREMENTS OF CPLR §§3013 and 3014
Levine was the unfortunate victim of a scheme designed to build a restaurant empire for
Defendant’s personal gain and to the detriment of Plaintiffs. Defendant benefited from the use of
Plaintiffs’ name and reputation within the restaurant and beverage industry while excluding him
from his portion of the bountiful profits that occurred as a result of his hard work. In order to
avoid having the court muddle its way through a zigzag of allegations, Plaintiffs carefully drafted
and organized each statement or allegation to correspond to each cause of action.
Subsequent to his wrongful termination, Levine discovered how intricate the Defendant’s
scheme was. In order to provide notice to the Defendant of the basis for the Amended Complaint,
the Plaintiffs included particularized statements showing how Defendant diverted the work, good
will and assets belonging to Plaintiffs to themselves at the exclusions of Plaintiffs. Plaintiffs
single-handedly built this restaurant empire by branding and operating the Sons of Essex,
Cocktail Bodega, Cocktail Bodega Underground, 61 Gans Restaurant, LLC, Petaluma and a
whole host of restaurant and catering venues. There were numerous defendants named in the
Amended Complaint because of the multitude of parties that contributed, be it a lot or a little, in
the scheme to defraud Plaintiffs. Each section of the Amended Complaint is labeled, each
statement is separately numbered and arranged to enable the reader to easily identify the
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allegations that correspond to each of the separately numbered causes of action. All statements
contained within the Amended Complaint were used to illustrate with precision each of
defendants’ actions that led to the filing of the instant matter.
Defendant identifies specifically only one paragraph that it believes to be too verbose at
paragraph 21 of his affirmation. That paragraph however was not previously identified by any
defendant in the original complaint as being the subject of Defendant’s prior motion. It is nine
lines long and describes the circumstances surrounding payment to a contractor. Aside from
listing allegedly verbose paragraphs no specific recitation of the problem with the paragraph is
provided. Indeed, most of the paragraphs Defendant points to contain one to two sentences and
most certainly are not verbose or difficult to respond to. Defendant cannot credibly argue that it
cannot respond to the allegations of the Amended Complaint as currently drafted. Rather, it
argues that it would take “several hours” to review and analyze the Amended Complaint for
purposes of making a motion to dismiss.
On a motion directed at the pleadings for failure to comply with the requirements of
CPLR §3013, 3014, and 3024, the Court must look to whether it states a cause of action and if
from its four corners, factual allegations are discerned which taken together manifest any cause
of action cognizable at law. See, Guggenheimer, supra. Here, Plaintiffs more than adequately
pled each factual allegation to support their causes of action in compliance with the requirements
of CPLR §3014. The paragraphs Defendant moves to strike all contain plain and concise
statements of fact. Additionally, each of these paragraphs contains only one allegation. The
allegations contained within each paragraph correspond to one of the separately numbered causes
of action. Moreover, the information contained within each paragraph is necessary to make out
causes of action cognizable at law.
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Furthermore, to the extent Defendant complains of an alleged “confusion” concerning the
fourth, eighth and twenty-second cause of action in the use of the term Aiders and Abettors,
suffice it to say that these claims are pled in the alternative. Aiders and Abettors in these
paragraphs each have the meaning ascribed to that term within the paragraph. Whether
Defendant was a perpetrator of the actions complained of herein or an Aider and Abettor thereof
is an issue of ultimate fact.
Similarly, with respect to the fourteenth cause of action for an injunction prohibiting
Defendant from using the name IF Hospitality, all defendants are sought to be enjoined as stated
in paragraph 602 of the Amended Complaint. Also, with respect to the “umbrella companies”
identified as the subject of the twelfth cause of action in the Amended Complaint, as stated in
paragraph 11 of the Amended Complaint, the umbrella companies consist of the Restaurants and
Catering Venues as those terms are specifically defined in the Amended Complaint. Finally, with
respect to the third cause of action for fraud, Defendant appears to complain that the allegations
of fraud are too specific. Not only are the circumstances surrounding the fraud specifically
identified but further factual predicates for the fraud are identified in paragraphs 517 to 522.
A careful review of the Amended Complaint shows that each of the separately numbered
paragraphs that are referenced above, correspond to the causes of action and contain all of the
necessary facts to support them. Only those statements which are evidentiary, conclusory,
argumentative or irrelevant are subject to being stricken from the pleading. Ward v. Smallwood,
12 A.D.2d 916 (1st Dep’t 1961). However, the mere fact that an allegation is irrelevant,
conclusory or evidentiary is not sufficient; it must also appear on the face of the pleading that if
it is allowed to remain [in the complaint] will harm the moving party. Margos v. Gonzalez, 34
11
Misc.2d 1058, 1059 (N.Y. Co. Sup. Ct. 1962). See also, Cleminshaw v. Coon, 136 A.D. 160 (3d
Dep’t 1909); and Young v. White, 158 A.D. 760 (1st Dept. 1913).
Defendant has failed to prove that the paragraphs that they are asking to be stricken from
the pleading are evidentiary, immaterial or conclusory. Moreover, Defendant has not even
attempted to show how he would be aggrieved by the inclusion of these paragraphs.
POINT II
DEFENDANT’S MOTION SHOULD BE DENIED BECAUSE
THE AMENDED COMPLAINT IS VOID OF ANY SCANDALOUS OR
PREJUDCIAL MATERIAL AS REQUIRED BY CPLR §3024(b)
“A motion to strike scandalous or prejudicial material from a pleading…will be denied if
the allegations are relevant to a cause of action.” New York City Health & Hosps., supra.
Although Plaintiffs have pled all of the necessary factual allegations to give Defendant notice of
the material elements intended to be proved, Defendant’s claim that Plaintiffs have inserted
scandalous and/or prejudicial information unnecessarily.
Specifically, Defendant seeks to strike several paragraphs in asserting that these
paragraphs contain prejudicial material that does not relate to any causes of action. In particular,
Defendant seeks to strike those paragraphs, which he says attack Shah’s and Jung’s character and
past wrongdoings.
These disputed paragraphs are relevant to establish causes of action for fraud,
conversion, wrongful termination, breach of fiduciary duty, unjust enrichment, negligence and
breach of duty of good faith and fair dealing. Because the paragraphs Defendant seeks to
dismiss are relevant to the above-referenced causes of action, Defendant’s motion must be
denied.
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CONCLUSION
For all the reasons set forth herein and the Amended Complaint, this Court should in all
respects deny Defendant’s motion in its entirety.
Dated: White Plains, New York
March 21, 2014
Respectfully submitted,
DANZIG FISHMAN & DECEA
By: /s/ Thomas B. Decea
THOMAS B. DECEA
A Member of the Firm
Attorneys for Plaintiffs
One North Broadway, 12th Floor
White Plains, New York 10601
(914) 285-1400
13
Preview
FILED: NEW YORK COUNTY CLERK 03/21/2014 INDEX NO. 652637/2013 NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 03/21/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------X BRANDSWAY HOSPITALITY, LLC a/k/a BRANDSWAY HOSPITALITY, INDIEFORK LLC Index No. 652637/2013 and MATTHEW LEVINE, Plaintiffs, -against- DELSHAH CAPITAL, LLC, DELSHAH MANAGEMENT, LLC, MICHAEL K. SHAH, VICTOR (Hon. Shlomo S. Hagler) JUNG, V GLOBAL HOLDINGS INC., 133 ESSEX RESTAURANT, LLC a/k/a SONS OF ESSEX, BLACK LABEL RESIDENTIAL LLC, 19 STANTON RESTAURANT, LLC a/k/a COCKTAIL BODEGA a/k/a COCKTAIL BODEGA UNDERGROUND, 61 GANS RESTAURANT LLC, GRIFFON GANSEVOORT HOLDINGS, LLC, GRIFFON GANSEVOORT HOLDINGS, LLC, GRIFFON MANAGEMENT, LLC, GRIFFON 55 GANS LLC, GRIFFON 55 GANS, LLC, GRIFFON GANS MANAGER, LLC, GRIFFON 19 STANTON LLC, 19 STANTON STREET, LLC, 19 STANTON STREET, LLC, GRIFFON 1356 LLC, GRIFFON Q, LLC, GRIFFON GANS, LLC, GRIFFON GANS MANAGER, LLC, GRIFFON HOLDINGS, LLC, GRIFFON INVESTMENT, LLC, GRIFFON INVESTMENT GROUP, LLC, GRIFFON INVESTMENT HOLDINGS, LLC, 1356 RESTAURANT LLC a/k/a PETALUMA RESTAURANT, 170 MERCER RESTAURANT LLC, MOON 170 MERCER, INC., 58-60 NINTH REALTY LLC, GANSEVOORT 69 LLC, DELSHAH GANSEVOORT 69, LLC, 69 GANSEVOORT RESTAURANT, INC., DELSHAH 60 NINTH, LLC, DELSHAH 60 NINTH MANAGER, LLC, INDIEFORK HOSPITALITY LLC, JAMES CHOUNG, JCNY, LLC, PAYCHEX, INC., JPMORGAN CHASE & CO. and JOHN DOE #1 through #10, Defendants. JOHN DOE #1 through #10 are fictitious and unknown to the plaintiffs, the person or parties intended being the persons or parties, if any, having or claiming an ownership of the defendant companies or the real property in which they are situated but whose identity is not yet known. ---------------------------------------------------------------------------X MEMORANDUM OF LAW OF PLAINTIFFS IN OPPOSITION TO MOTION TO AMEND AND/OR STRIKE PORTIONS OF AMENDED COMPLAINT DANZIG FISHMAN & DECEA One North Broadway, 12th Floor White Plains, New York 10601 (914) 285-1400 2 PRELIMINARY STATEMENT Plaintiffs Brandsway Hospitality, LLC a/k/a Brandsway Hospitality, IndieFORK, LLC and Matthew Levine (together “Plaintiffs”), submit this memorandum of law in opposition to the motion of defendant Victor Jung (referred to herein as the “Defendant”) which asks the court for an order requiring Plaintiffs to amend their complaint or alternatively to strike portions thereof. On January 16, 2014, Plaintiffs filed an amended verified complaint (“Amended Complaint”), as of right, under the Civil Practice Law and Rules (“CPLR”) Section 3025(a). In the interest of judicial economy, Plaintiffs filed the Amended Complaint to address some of the alleged pleading deficiencies previously raised by defendants in prior motion practice. Now Defendant raises new alleged deficiencies in what appears to be an effort to stall the litigation of the substantive issues in this action. For the reasons established below, the motion of Defendant should in all respects be denied. Plaintiffs have sufficiently pled causes of action based on the breach of contract, fraud and other tortuous conduct of Defendant. In fact, the Amended Complaint establishes that defendants not only committed tortious acts against the Plaintiffs, which resulted in Plaintiffs suffering grave financial harm, but have also precluded Plaintiffs from receiving any future financial gains. A careful review of the Amended Complaint reveals that Plaintiffs pled all necessary factual allegations to give defendants notice of the material elements intended to be proved. Moreover, all statements pled are sufficient to sustain the causes of action stated in the Amended Complaint. The length of the Amended Complaint is not a basis for its dismissal and in any event establishes and details the series of occurrences and transactions occurring between 2011 and 2013 that lead to the numerous causes of action and the filing of this matter. It appears 3 that Defendant objects to the content of the Amended Complaint by virtue of the fact that it details Defendant’s wrongdoing but seeks to dismiss it under the guise of its length. Defendant should have thought about his tortious conduct before committing it, if he had an aversion to seeing it detailed in print. Defendant complains about the length and detail of the Amended Complaint but the fact of the matter is that it merely alleges the facts of defendant’s own conduct. Defendant Michael Shah’s varied defalcation schemes, which Defendant Jung conspired to commit, were perpetrated by and through his co-defendants, via the illegal operations of numerous restaurants and catering ventures through which he operated his fraud. The various conspiracies perpetrated by defendants Shah and Jung were voluminous and it is ironic but not compelling that the primary basis for dismissal is volume; the verified statements contained in the Amended Complaint are more than adequate to notify under CPLR §§ 3013, 3014, and 3024(b). Significantly, Defendant does not even attempt to argue that the Amended Complaint fails to state a cause of action upon which relief may be granted because in fact the causes of action are more than sufficient. Rather, Defendant relies on the length and specificity of the Amended Complaint, seeks to strike certain paragraphs of the Amended Complaint because they contain evidentiary material, and/or contain allegations which Defendant describes as scandalous and prejudicial. Defendant’s arguments defy logic. STATEMENT OF FACTS The facts to be considered on the motion are set forth in the Amended Complaint which must be deemed to be true and given all favorable inferences. Briefly stated, Plaintiff, Brandsway Hospitality, LLC run by Plaintiff Matt Levine (“Levine”), is a full service food and beverage hospitality and operations firm. Levine is a 4 proven restaurant operator who entered into a written contract with Defendant, 133 Essex Restaurant, LLC to run the day to day operations of Sons of Essex. Pursuant to the terms of this contract, Levine through his corporation Brandsway Hospitality, LLC was to be the managing partner of Sons of Essex with a 35% ownership interest in the restaurant, which was to vest after he fulfilled certain performance metrics, in particular after he met Defendant’s revenue goal of $2,763,490.00. Levine also marketed, developed and operated other restaurant ventures with Defendant. Plaintiffs branded and operated the Sons of Essex receiving a Grade A from the Department of Health, the highest grade possible and receiving many accolades from its customers. Because of Levine’s reputation, Sons of Essex booked many publicity and revenue generating events with celebrities garnering a lot of attention for the restaurant. While Levine was building and branding Sons of Essex, Defendant was misappropriating and commingling funds, depleting the food, staff and liquor and committing many other countless tortious acts against Plaintiffs, including forging Levine’s signature and using Levine’s social security number to obtain credit cards and financing without the Plaintiffs’ consent. Levine fulfilled his performance metrics. Defendant’s financial projections for 2011 were $2,763,490.00. Levine greatly exceeded their goals, bringing in $3,471,873 and was on pace to generate 3x their own projections. Levine was wrongfully terminated ostensibly because of the failure to achieve certain performance metrics. However, Defendant is not able to produce any numbers to demonstrate this purported failure. Levine far surpassed the Defendant’s financial projections and exceeded their goals, a fact that Defendant pointed out repeatedly in over two years of correspondence. 5 Defendant commingled funds to finance other projects including restaurants and catering venues in an effort to divert monies and defraud the United States Internal Revenue Service and the New York State Department of Taxation and Finance. Defendant repeatedly used employees of Sons of Essex to work at the other restaurants and catering venues, his own personal residences, and to do his personal tasks. Profits of Sons of Essex were diverted to make illegal political contributions to the mayoral candidacy and for the New York City Public Advocate. Additionally taxable profits were regularly being diverted from Sons of Essex to those projects which were losing money. Defendant went so far as to purchase liquor illegally in New Jersey to be used for sale at the other restaurants and catering venues. Liquor was ordered through the Sons of Essex and later transported to the other restaurants and catering venues. Defendant took home liquor for personal use and used business money to pay his personal expenses and otherwise commingled the proceeds of the various restaurants and catering venues. After Levine was wrongfully terminated, he was excluded from Sons of Essex and told he had no ownership interest in it or any of the other restaurants and catering venues. Defendant used Plaintiffs outstanding reputation in the restaurant and beverage industry to achieve financial and to the Plaintiffs’ detriment. Levine’s termination was not due to his failure to perform, but was a move to push Plaintiffs out so Defendant could gain complete control over the restaurants and catering venues that Plaintiffs built. ARGUMENT LEGAL STANDARD On a motion to dismiss, the court’s sole consideration “…is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned, which taken together manifest any cause of action cognizable at law a motion for dismissal will fail.” 6 Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 372 N.E. 2d 17 (1977). The present motion is the reverse of what is usually sought by a CPLR §3211(a) pre-answer motion to dismiss; that is, such motions generally rely upon the lack of specificity or detail which does not meet the notice requirements of the law. Here, Defendant argues that the Amended Complaint is too detailed; this argument is anomalous. Under the requirements set forth in CPLR §3013, 3014 and 3024 a complaint “(i) shall contain statements that are sufficiently particular, (ii) shall consist of plain and concise statements, (iii) shall separately state and number causes of action and indicate the allegations which relate to each cause of action and give adequate notice of the material elements of each cause of action, and (iv) shall omit prejudicial and unnecessary allegations.” CPLR § 3013, 3014 and 3024. See also, Foley v. D'Agostino, 21 A.D.2d 60, 64-66, 248 N.Y.S.2d 121 (1st Dept. 1964). The test for whether a complaint is sufficiently particular is whether the pleading gives notice of the transactions relied on and the material elements of a cause of action. See CPLR § 3013; Duross v. Evans II, 22 A.D.2d 573 (1st Dept. 1965); and Melito v. Interboro-Mut. Indem. Ins. Co., 73 A.D.2d 819 (4th Dept. 1979). The requirement that a pleading consist of plain and concise statements that are separately stated and numbered under CPLR § 3014 was designed to eliminate loosely drawn verbose and poorly organized pleadings and determine whether or not the pleading as a whole fails to state a cause of action. Foley v. D'Agostino, supra at 64. Courts will only strike those pleadings which are “unnecessarily prolix, redundant and repetitious and where, instead of stating plainly and concisely the material facts, the pleading contains evidentiary matter and is cumbered by a mass of immaterialities.” Aster v. Arthur Murray, Inc., 7 220 N.Y.S.2d 34 (Kings Co. Sup. Ct. 1961); See also, Foley, supra; and Shass v. Abgold Realty Corp., 277 A.D. 346 (2d Dept. 1950). Finally, only those pleadings which contain unnecessary, irrelevant and prejudicial material will constitute a violation of CPLR § 3024. Schachter v. Massachusetts Protective Ass’n, 30 A.D.2d 540 (2d Dept. 1968). The test to be applied…is whether or not the matters pleaded are too conclusory or of too detailed evidence, is whether or not they will be relevant at the trial in the resolution of the substantive issues, and whether or not they be material to move the court’s…discretion to grant the ordinary and extraordinary relief requested-all in all, that is, if relevant and material, whether or not substantive prejudice would be the likely result if the allegations attached are not stricken Merrick v. New York Subways Adv. Co., 14 Misc. 2d 456, 178 N.Y.S.2d 814 (N.Y. Co. Sup. Ct. 1958). “In reviewing a motion pursuant to CPLR 3024(b) the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action.” Foley, supra at 64-66; Soumayah v. Minnelli, 41 A.D.3d 390, 392 (1st Dept. 2007); New York City Health & Hosps. Corp. v. St. Barnabas Hosp., 10 A.D.3d 489 (1st Dept. 2004); Rice v. St. Luke’s Roosevelt Hospital Center, 293 A.D.2d 258 (1st Dept. 2002). If the allegations are pertinent to the subject matter of the litigation, they cannot be scandalous. Niles v. Yoakum, 179 A.D. 75 (1st Dept. 1917). See also, Shtafman v. Rokeach & Sons, 16 Misc.2d 888, N.Y.S.2d 531 (N.Y. Co. Sup. Ct. 1958); and Bell v. Clarke, 45 Misc. 275, 92 N.Y.S. 411 (N.Y. Co. Sup. Ct. 1904). In accordance with the requirements of CPLR § 3013, 3014 and 3024, Plaintiffs have pled each statement with sufficient particularity, labeling each section of the Amended Complaint and listing in chronological order the series of occurrences that lead to the causes of action contained within the Amended Complaint. Moreover, the Amended Complaint is void of any unnecessary, scandalous or prejudicial material and the allegations contained in the pleading 8 are material to each of the causes of action. Moreover, Defendant has failed to show how he would be aggrieved by the inclusion of the paragraphs he is seeking to strike. Thus, there is no basis to dismiss the Amended Complaint. J.C. Mfg., Inc. v. NPI Elec., Inc., 178 Ad2d 505, 506 (2d Dept. 1991). POINT I DEFENDANT’S MOTION SHOULD BE DENIED BECAUSE THE PLAINTIFFS HAVE COMPLIED WITH THE REQUIREMENTS OF CPLR §§3013 and 3014 Levine was the unfortunate victim of a scheme designed to build a restaurant empire for Defendant’s personal gain and to the detriment of Plaintiffs. Defendant benefited from the use of Plaintiffs’ name and reputation within the restaurant and beverage industry while excluding him from his portion of the bountiful profits that occurred as a result of his hard work. In order to avoid having the court muddle its way through a zigzag of allegations, Plaintiffs carefully drafted and organized each statement or allegation to correspond to each cause of action. Subsequent to his wrongful termination, Levine discovered how intricate the Defendant’s scheme was. In order to provide notice to the Defendant of the basis for the Amended Complaint, the Plaintiffs included particularized statements showing how Defendant diverted the work, good will and assets belonging to Plaintiffs to themselves at the exclusions of Plaintiffs. Plaintiffs single-handedly built this restaurant empire by branding and operating the Sons of Essex, Cocktail Bodega, Cocktail Bodega Underground, 61 Gans Restaurant, LLC, Petaluma and a whole host of restaurant and catering venues. There were numerous defendants named in the Amended Complaint because of the multitude of parties that contributed, be it a lot or a little, in the scheme to defraud Plaintiffs. Each section of the Amended Complaint is labeled, each statement is separately numbered and arranged to enable the reader to easily identify the 9 allegations that correspond to each of the separately numbered causes of action. All statements contained within the Amended Complaint were used to illustrate with precision each of defendants’ actions that led to the filing of the instant matter. Defendant identifies specifically only one paragraph that it believes to be too verbose at paragraph 21 of his affirmation. That paragraph however was not previously identified by any defendant in the original complaint as being the subject of Defendant’s prior motion. It is nine lines long and describes the circumstances surrounding payment to a contractor. Aside from listing allegedly verbose paragraphs no specific recitation of the problem with the paragraph is provided. Indeed, most of the paragraphs Defendant points to contain one to two sentences and most certainly are not verbose or difficult to respond to. Defendant cannot credibly argue that it cannot respond to the allegations of the Amended Complaint as currently drafted. Rather, it argues that it would take “several hours” to review and analyze the Amended Complaint for purposes of making a motion to dismiss. On a motion directed at the pleadings for failure to comply with the requirements of CPLR §3013, 3014, and 3024, the Court must look to whether it states a cause of action and if from its four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law. See, Guggenheimer, supra. Here, Plaintiffs more than adequately pled each factual allegation to support their causes of action in compliance with the requirements of CPLR §3014. The paragraphs Defendant moves to strike all contain plain and concise statements of fact. Additionally, each of these paragraphs contains only one allegation. The allegations contained within each paragraph correspond to one of the separately numbered causes of action. Moreover, the information contained within each paragraph is necessary to make out causes of action cognizable at law. 10 Furthermore, to the extent Defendant complains of an alleged “confusion” concerning the fourth, eighth and twenty-second cause of action in the use of the term Aiders and Abettors, suffice it to say that these claims are pled in the alternative. Aiders and Abettors in these paragraphs each have the meaning ascribed to that term within the paragraph. Whether Defendant was a perpetrator of the actions complained of herein or an Aider and Abettor thereof is an issue of ultimate fact. Similarly, with respect to the fourteenth cause of action for an injunction prohibiting Defendant from using the name IF Hospitality, all defendants are sought to be enjoined as stated in paragraph 602 of the Amended Complaint. Also, with respect to the “umbrella companies” identified as the subject of the twelfth cause of action in the Amended Complaint, as stated in paragraph 11 of the Amended Complaint, the umbrella companies consist of the Restaurants and Catering Venues as those terms are specifically defined in the Amended Complaint. Finally, with respect to the third cause of action for fraud, Defendant appears to complain that the allegations of fraud are too specific. Not only are the circumstances surrounding the fraud specifically identified but further factual predicates for the fraud are identified in paragraphs 517 to 522. A careful review of the Amended Complaint shows that each of the separately numbered paragraphs that are referenced above, correspond to the causes of action and contain all of the necessary facts to support them. Only those statements which are evidentiary, conclusory, argumentative or irrelevant are subject to being stricken from the pleading. Ward v. Smallwood, 12 A.D.2d 916 (1st Dep’t 1961). However, the mere fact that an allegation is irrelevant, conclusory or evidentiary is not sufficient; it must also appear on the face of the pleading that if it is allowed to remain [in the complaint] will harm the moving party. Margos v. Gonzalez, 34 11 Misc.2d 1058, 1059 (N.Y. Co. Sup. Ct. 1962). See also, Cleminshaw v. Coon, 136 A.D. 160 (3d Dep’t 1909); and Young v. White, 158 A.D. 760 (1st Dept. 1913). Defendant has failed to prove that the paragraphs that they are asking to be stricken from the pleading are evidentiary, immaterial or conclusory. Moreover, Defendant has not even attempted to show how he would be aggrieved by the inclusion of these paragraphs. POINT II DEFENDANT’S MOTION SHOULD BE DENIED BECAUSE THE AMENDED COMPLAINT IS VOID OF ANY SCANDALOUS OR PREJUDCIAL MATERIAL AS REQUIRED BY CPLR §3024(b) “A motion to strike scandalous or prejudicial material from a pleading…will be denied if the allegations are relevant to a cause of action.” New York City Health & Hosps., supra. Although Plaintiffs have pled all of the necessary factual allegations to give Defendant notice of the material elements intended to be proved, Defendant’s claim that Plaintiffs have inserted scandalous and/or prejudicial information unnecessarily. Specifically, Defendant seeks to strike several paragraphs in asserting that these paragraphs contain prejudicial material that does not relate to any causes of action. In particular, Defendant seeks to strike those paragraphs, which he says attack Shah’s and Jung’s character and past wrongdoings. These disputed paragraphs are relevant to establish causes of action for fraud, conversion, wrongful termination, breach of fiduciary duty, unjust enrichment, negligence and breach of duty of good faith and fair dealing. Because the paragraphs Defendant seeks to dismiss are relevant to the above-referenced causes of action, Defendant’s motion must be denied. 12 CONCLUSION For all the reasons set forth herein and the Amended Complaint, this Court should in all respects deny Defendant’s motion in its entirety. Dated: White Plains, New York March 21, 2014 Respectfully submitted, DANZIG FISHMAN & DECEA By: /s/ Thomas B. Decea THOMAS B. DECEA A Member of the Firm Attorneys for Plaintiffs One North Broadway, 12th Floor White Plains, New York 10601 (914) 285-1400 13